AOS while in tourist visa

Hi, I'm Mexican and I'm married to a US citizen, right now we're visiting his family in California,
I entered with a B1/B2 visa 3 weeks ago, I never mentioned I was married, I just said I was visiting family, I'm saying this because now that we're here we've been reading about how to apply for an immigrant visa and we're scared they're going to think I lied, our intention never was to stay, we're at his parents' currently and we were planning on going back to Mexico in August. We were living there because I was attending school, and my husband was there on a tourist visa with a 180 day permit. We think it's going to be better for us if we stay in the US so he can actually have a job and finish school, so we want to apply for a green card for me. We want to do everything legally. Are we able now to get a change of status for me to be a resident? or should we wait more time before filing for it? How long does it normally take and about how much is it going to cost total?



Phil's picture

Hi Ana, thank you for your

Hi Ana, thank you for your post. This is a common question I've dealt with in this forum before and in a previous article. The article discuss this issue with respect to Canadians but the issues are equally applicable to Mexican nationals.

Here are links to a few other posts you should look at:

Look these over and then post a follow-up if you have additional questions.

Thank you for your response.

Thank you for your response. I read those posts before actually. The only one I hadn't seen was the article you wrote. They're really helpful. But it just isn't very clear for me if it's ok to wait a few months and then file so it is not considered as fraud or if even doing so that there's still a possibility we may be punished for the fact that I got here on a B1/B2 visa and then we happened to decide that we wanted to stay here. I'm scared they can take my visa and I will not be able to come back for a few years. I just don't want to go back to Mexico and wait without being able to visit or see my husband. Does he have to stay in the US if we decided that I go back to Mexico so he can start to file the I-130? I mean, does he have to be present all the time to go to appointments or send paper work if they need him? What happens if we file while in the US and they consider it as a fraud and take my visa? Do we have to wait to file or can we start the process right away? Thank you so much again, we want to understand as much as possible so we can decide which way to go.

Phil's picture

The level of risk that a

The level of risk that a fraudulent entry or immigration fraud would become an issue if you decide to apply for AOS in the U.S. is entirely dependent on all of the facts and details about what the CBP officer asked you and how you responded. I don't give formal legal opinions in this forum. I can just provide generalized information about these issues and cases like this are so fact driven that the generalized information probably won't help you make a decision. The consequences can be severe if this becomes and issue so its definitely worth getting a formal legal opinion on this. If you are interested in my help on this send me an email and I'll give you a quote for my services. If you'd prefer to meet with someone in person then I would encourage you to find someone locally in California. Either way I think you need to get some professional advice on this before you file an AOS application.

The other option would be to just go back to Mexico and your husband could file an I-130. He doesn't need to be in the U.S. to file an I-130. He can submit everything by mail but correspondence from the USCIS would go to his U.S. address so he'd need someone to check that and forward it along to him in Mexico if you went this route.

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